The Missouri Senate has passed a revised adult business ordinance which, while not as detailed as the measure reported on here, is no less onerous.
For instance, the new version of the bill, titled SB 32, completely outlaws arcade booths, and appears also to eliminate adult theaters from the landscape, under Sec. 67.2546(1). That section reads, "A person who operates or causes to be operated a sexually-oriented business shall be prohibited from exhibiting in a viewing room on the premises a film, video cassette, DVD, or other video reproduction that depicts specified sexual activities."
Dropped from the new bill, which passed on March 8, are the exhaustive definitions of the following: adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort, escort agency, nude model studio, and sexual encounter center. Those definitions were contained in Revision 2 of the original bill, but were replaced with the more general "sexually-oriented business.” That is now defined as "an adult cabaret or any business which offers its patrons goods of which a substantial portion are sexually-oriented material, any business where more than ten percent of display space is used for sexually-oriented materials shall be presumed to be a sexually-oriented business."
Poor grammar aside, the new definition substitutes the concept of a "substantial portion" of goods as one defining measure of an adult business, rather than the slightly more vague "one of [the] principal purposes" of the establishment. And since no one knows what, legally, constitutes a "substantial portion" – in New York City, for instance, the courts have held that it means 40 percent of the stock devoted to adult – the new phraseology also adds the quantification "more than ten percent of display space" as another defining characteristic of an adult business.
Added to the new bill is a definition of "sexually-oriented materials," which includes much of the information formerly used to describe the operations of different types of sexually oriented businesses.
The new definition states, "'Sexually-oriented materials' [are] any textual, pictorial, or three dimensional material, or film, motion picture, DVD, video cassette, or similar photographic reproduction, that depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors."
The definition is troubling in several respects. No depiction of simple nudity has been held by a court to offend contemporary adult community standards in several years, but worse, the definition seems to indicate that the standard by which any sexual material is to be judged is whether the material is deemed "patently offensive" by "contemporary adult community standards" as they apply to whether the material is suitable for minors.
In other words, if an average contemporary-minded adult in the community thinks that any vaguely sexual material is unsuitable for minors, the material is then considered to be "sexually-oriented." That contortion of the law would surely be held unconstitutional by the federal courts, which have already made it clear that adults are entitled to view a wide variety of sexual materials which minors are not.
Equally constitutionally offensive is Sec. 67.2542, which imposes a special $5 "admission tax" on each person entering an adult business, and also a 20 percent adjusted gross receipts tax on those businesses – taxes which are not imposed on any other First Amendment-protected enterprises in the state. Legal experts have opined that such taxes are discriminatory, which is why a similar measure proposed in California several years ago was never even brought to a vote in the legislature.
Another section of the law which will create vast problems for adult businesses is the definition of a "nuisance" (Sec. 67.2540(4)), which is "any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films, or films designed to be projected for exhibition, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose."
In other words, goodbye adult video production facilities of any sort – which also get shafted under Sec. 67.2552(1), which prohibits "a person to knowingly and intentionally appear in a state of nudity or depict, simulate, or perform specified sexual activities in a sexually-oriented business."
Those "specified sexual activities," incidentally, are: "The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts; sex acts, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or excretory functions as part of or in connection with any of the activities set forth in this subdivision."
Goodbye also to adult motels, adult motion picture theaters, adult theaters, sexual encounter centers and nude model studios; those are all now public nuisances and will be closed, and the owners and employees involved charged with a Class A misdemeanor.
Cabarets are particularly hard hit by the new definitions of "nudity" and "semi-nudity." "Nudity" (or "a state of nudity") consists of "the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or anal cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state."
"Semi-nudity" or a "semi-nude condition" obtains when a person is in "a state of dress in which opaque clothing fails to cover the genitals, anus, anal cleft or cleavage, pubic area, vulva, nipple and areola of the female breast below a horizontal line across the top of the areola at its highest point. Semi-nudity shall include the entire lower portion of the female breast, but shall not include any portion of the cleavage of the human female breast exhibited by wearing apparel provided the areola is not exposed in whole or part."
It's that "anal cleft or anal cleavage" – in other words, the top of the crack of someone's ass – that's particularly interesting, since any employee who appears in that "nude or semi-nude" condition in a sexually-oriented business "shall be at least ten feet from any patron or customer and on a stage at least two feet from the floor and behind a railing no less than twenty-four inches in height" (Sec. 67.2552(2)) and is guilty of a Class A misdemeanor if he/she "solicit[s] any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity to any employee, while said employee is semi-nude in a sexually-oriented business," or even touches that customer/patron or that person's clothing!
And of course, "No sexually-oriented business may remain open at any time between the hours of 12 a.m. and 10 a.m. on weekdays and Saturdays. Such businesses shall be closed on all official state or federal holidays and Sundays." That's a bit of an improvement from the previous version of the bill, which prohibited adult businesses from doing business from 10 p.m. to 10 a.m.. (Yay...)
There are plenty of other things wrong with this bill, including the particulars of the information required to be supplied for an adult business license and the criteria under which such license can be refused to be issued, and the types of people affiliated with the business or the building in which it's housed (or the land it sits on!) who can be held legally responsible for violations – but what it all adds up to is that if this bill becomes law, Missouri will become a very unpleasant place to do (adult) business.
